ARTICLE 47: PERFORMANCE ENHANCING SUBSTANCES PROGRAM
47.1 Introduction. The parties agree to the establishment of a jointly-administered Performance Enhancing Substances Program ("Program"), which shall have as its primary purposes the education of Players regarding the health risks posed by the use of prohibited performance enhancing substances ("Prohibited Substances"); the treatment of Players who have used Prohibited Substances; and the deterrence and prevention of such use through education, random no-notice testing and the imposition of disciplinary penalties where appropriate.
47.2 Program Committee. The Program shall be jointly administered by a Program Committee ("Committee") comprised of an equal number of League and NHLPA representatives and one (1) consulting expert doctor nominated by each party. The responsibilities of the Committee shall include, among other things:
(a) to establish a comprehensive educational program for Players on the dangers of Prohibited Substances and the nature of the Program;
(b) to select, and contract with, an appropriate sample collecting authority;
(c) to select, and contract with, an appropriate testing laboratory;
(d) to review the WADA list of prohibited performance enhancing substances and make recommendations to the NHL and NHLPA as to which performance enhancing substances on the WADA list are relevant to the sport of hockey and should be deemed Prohibited Substances under the Program;
(e) to develop Player and Club notification procedures for positive test results;
(f) to oversee the administration of Player evaluation and treatment following positive test results; and
(g) to establish standards for the administration of "reasonable cause" testing.
The Committee shall endeavor to render unanimous decisions with respect to matters committed to it pursuant to this Article. In the absence of a unanimous decision, a decision by the majority of Committee members shall govern. When a majority decision cannot be reached, the two (2) consulting expert doctors shall select an ad hoc expert doctor who shall cast the deciding vote with respect to the matter at issue.
47.3 Scope of Program. The Program shall be limited to addressing the testing for and use of prohibited performance enhancing substances (Prohibited Substances). All other forms of "substance abuse" and behavioral and domestic issues requiring employee assistance will continue to be handled through the NHL/NHLPA Program for Substance Abuse and Behavioral Health (the "SABH Program").
47.4 Educational Initiatives. Players shall receive education on Prohibited Substances and the nature of the Program each League Year during Training Camp, provided, however, that no testing shall take place and no discipline shall be imposed under the Program until the Committee has provided a Player with an orientation session regarding the Program, which shall include an in-person presentation on the Program and the distribution of informational materials describing all relevant aspects of the Program, including the list of Prohibited Substances, testing procedures and disciplinary penalties. Education and training on the details of the Program will also be provided to Club Athletic Trainers and Club physicians. Over time, and to the extent feasible, the Committee will endeavor to develop an "approved list" of nutritional supplements, which will have been tested and certified as being free of Prohibited Substances.
47.5 Prohibited Substances. The NHL and the NHLPA shall be responsible for maintaining the list of Prohibited Substances (the "Prohibited Substances List"). Upon receiving the Committee’s recommendations made pursuant to Section 47.2(d) above, the parties shall confer and agree upon the Prohibited Substances to be included on the List. Changes to substances on the List may only be as negotiated by the NHL and the NHLPA. There shall be no retesting of samples based on newly discovered substances not included on the Prohibited Substances List at the time of the original testing.
47.6 Testing Procedures. Every NHL Player who has participated in an orientation session pursuant to Section 47.4 will be subject to up to two (2) no-notice tests during the period from the start of Training Camp through the end of the Regular Season. All such tests will be conducted at the Clubs’ facility on the day of a scheduled practice, as opposed to on a game day.
47.7 Disciplinary Penalties. Positive tests for performance enhancing substances will result in mandatory discipline as follows:
(a) for the first positive test, a suspension of twenty (20) NHL Games without pay, and mandatory referral to the SABH program for evaluation and possible treatment;
(b) for the second positive test, a suspension of sixty (60) NHL Games without pay, and mandatory referral to the SABH program for evaluation and possible treatment;
(c) for the third positive test, a "permanent" suspension without pay, although a Player so suspended can reapply for discretionary reinstatement after a minimum period of two (2) years by making an application to the Committee.
47.8 Appeal Procedures. The NHLPA may, on a Player’s behalf, appeal a positive test to the Impartial Arbitrator on an expedited basis, utilizing the procedures set forth in Article 17 of the Agreement. A strict liability standard will be employed with respect to all positive tests. Notwithstanding the above, the Player shall be entitled to challenge the imposition of any discipline in the event he is able to establish an applicable therapeutic use exemption (as described in Section 47.9 hereof), a testing error, mistaken use, or the use of a tainted supplement or other product (i.e., where the Player could not have reasonably ascertained the presence of the Prohibited Substance). To the extent a Player successfully establishes a defense to a positive test, he may avoid the mandatory suspension, but will in all cases be referred to the SABH Program for evaluation and possible treatment. A Player who files a timely appeal may not be suspended pursuant to Section 47.7 until a decision on the appeal has been rendered by the Impartial Arbitrator.
47.9 Therapeutic Use Exemption. A Player may apply to the Committee for a therapeutic use exemption with respect to a particular Prohibited Substance. The Committee shall consider and act upon such Player’s application expeditiously and approval of the application shall not be unreasonably withheld.
47.10 Confidentiality. Test results will be kept confidential, subject to the following limited exception: once a positive test has been confirmed after appeal to the Impartial Arbitrator, or if no appeal is taken, the Player suspended will be identified, and it will be announced that the Player "has been suspended for violating the terms of the NHL/NHLPA Program for Performance Enhancing Substances."
47.11 Program Funding. Any salary forfeited by a Player by reason of a suspension imposed pursuant to Section 47.7 will be utilized to help defer the costs of both the Program and the SABH Program. All costs of administering the Program, including the costs associated with mandatory no-notice testing, shall be the responsibility of the NHL.
47.12 Mandatory Legislation. The parties agree that to the extent mandatory and binding legislation goes into effect that requires material changes to the Program, the provisions of the Program will become null and void and the parties will endeavor to collectively bargain over a revised Program that complies with such legislation and that is agreeable to both parties.
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